BAEC Bulletin | November/December 2021 | 21
NYS Courts Seeking Comment on NYSCEF Report and Mandatory E-Filing Amendment BY JEFFREY CARUCCI
As you may know, the Office of Court Administration submits a report each February 1 to the Legislature, the Governor, and the Chief Judge evaluating the State’s experience with the Unified Court System’s electronic filing system (NYSCEF). I write again as in past years, to invite your comments on electronic filing for inclusion in the 2022 annual. I write as well to solicit your observations, for inclusion in the February report, on a proposed amendment to CPLR Article 21A and other relevant statutes to authorize the Chief Administrative Judge to make e-filing mandatory across the state — in any or all of the State’s trial courts. This proposal was included in last year’s report, and endorsed in the Report of The Commission to Reimagine the Future of New York’s Courts. 1 Addressing electronic filing generally, the Commission which was created June 2020 by Chief Judge Janet DiFiore, recommended that legislation be enacted to allow the Chief Administrative Judge to institute e-filing on a mandatory basis in all of the State’s trial courts, and that e-filing be made mandatory and standardized statewide given that unnecessary courthouse trips present risk during the ongoing pandemic and can waste resources in ordinary times. The Commission’s Report stated, “In-person filing wastes attorney time, client money, and court resources, and is especially dangerous during the global health crisis we are currently experiencing” (Report, p.9). It further stated: “By implementing mandatory, standardized e-fling throughout the state, courts can save time and money and keep everyone safe. However, the existing exceptions for pro se litigants and technologically challenged attorneys should remain.” (id.). Currently, the Chief Administrative Judge remains restrained from making e-filing mandatory in certain courts and case types throughout New York State. The current proposal, in tandem with the Commission’s recommendation -- to lift the current restraints upon the discretion of the Chief Administrative Judge to introduce mandatory e-filing programs in any court and/or action2 -- would not alter requirements of consultation with the Bar, legal services providers and other groups (as well as the need for consent of the County Clerk in affected counties outside New York City) in advance of any future
expansion or affect other existing provisions in the e-filing legislation. Further, unrepresented persons in cases in which e-filing would otherwise be mandatory would continue to be exempt from e-filing unless they affirmatively choose to participate. Moreover, attorneys in such cases would continue to be able to opt out of e-filing if they lack the equipment or knowledge to participate. Finally, the proposal would not alter current requirements of confidentiality in the treatment of actions that require it. In order that we may have the time needed to prepare the report due February 1, 2022, I ask that as a group, an individual member of a group, or any interested person and/or attorney, submit any comments by December 22, 2021. All comments received will be included in the Annual Report. Comments should be sent by e-mail or regular mail to either of the following addresses:
Jeffrey Carucci Director, OCA Division of E-Filing Office of Court Administration 25 Beaver Street, Rm. 1062 New York, New York 10004 efilingcomments@nycourts.gov
We look forward to your comments regarding NYSCEF and the immediate proposal. • 1 ‘The Initial Report on the Goals and Recommendations for New York State’s Online Court System, Online Courts Working Group of the Commission to Reimagine the Future of New York’s Courts, November 9,2020 (“Report”), available at http://www.nycourts.Rov/whatsnew/odf/OCWG-Report.pdf.
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